United States v. Hernandez-Martinez , 165 F. App'x 372 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 16, 2006
Charles R. Fulbruge III
Clerk
No. 04-41231
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RUBEN SANCHEZ HERNANDEZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-329-ALL
--------------------
Before JONES, Chief Judge, and BARKSDALE and BENAVIDES, Circuit
Judges.
PER CURIAM:*
Ruben Sanchez-Hernandez (Sanchez) pleaded guilty to illegal
reentry after deportation and was sentenced to 57 months of
imprisonment, three years of supervised release, and a $100 special
assessment that was ordered remitted on the Government’s motion.
Sanchez argues that the district court committed reversible
error when it sentenced him pursuant to the mandatory federal
Sentencing Guidelines system held unconstitutional in United States
v. Booker, 543 U.S. 220 (2005). The erroneous application of the
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
guidelines as mandatory is technically a “Fanfan error.” See
United States v. Martinez-Lugo, 411 F.3d 597, 600 (5th Cir.), cert.
denied, 126 S. Ct. 464 (2005). The Government concedes that
Sanchez preserved his Fanfan claim for appeal and that the issue is
reviewed for harmless error. See United States v. Walters,
418 F.3d 461, 463 (5th Cir. 2005).
Sanchez argues that he is entitled to resentencing because
application of the Sentencing Guidelines as mandatory constituted
structural error. However, this issue is foreclosed. See id.Sanchez also contends that the record does not disclose that the
district court’s error was harmless beyond a reasonable doubt. The
Government argues that any error by the district court was
harmless. However, in support of this assertion, the Government
contends only that the district court acted reasonably in taking
into account the Sentencing Guidelines and the presentence report
when it sentenced Sanchez. The sentencing transcript is silent
with regard to whether the district court would have applied the
same sentence had the Guidelines been advisory only. Furthermore,
Sanchez’s 57-month term of imprisonment is at the bottom of the
applicable guideline range. Under such circumstances, the
Government has not met its burden of proving the error harmless
beyond a reasonable doubt. See id. We therefore VACATE the
sentence and REMAND for resentencing in accordance with Booker.
Sanchez’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
2
Although Sanchez contends that Almendarez-Torres was incorrectly
decided and that a majority of the Supreme Court would overrule
Almendarez-Torres in light of Apprendi v. New Jersey, 530 U.S. 466(2000), we have repeatedly rejected such arguments on the basis
that Almendarez-Torres remains binding. See United States v.
Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, 126 S. Ct.
298 (2005). Sanchez properly concedes that his argument is
foreclosed in light of Almendarez-Torres and circuit precedent, but
he raises it here to preserve it for further review. The judgment
of conviction is AFFIRMED.
CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.
3